How frozen embryos should be treated during a divorce is an issue that can be as contentious as resolving child custody matters. California couples who are divorcing and have frozen embryos in storage as a result of in vitro fertilization should be aware of their options.
At the beginning of the IVF process, couples are required by storage facilities to sign a consent form that authorizes the facility to freeze and safeguard the embryos the couples created. However, these agreements do not go into depth regarding what should happen to the embryos should a couple decide to get a divorce. Instead, the forms merely allow a couple to indicate whether the eggs should continue to be frozen, if they should be used in medical research, given to another person or destroyed.
The possibility of a divorce may be one of the last things eager parents who are undergoing in vitro fertilization may consider. However, if a divorce does occur and embryos have been created, each party is faced with the complicated situation of making life-changing choices with someone from whom he or she is estranged.
There is not substantial case law that help individuals searching for a legal remedy to the state of their frozen embryos. There is also an issue of whether the consent agreements the storage facilities require the parents to sign can be legally enforced. Frozen embryos are currently considered to be the personal property of both of the parents. In cases in which the women are undergoing the in vitro fertilization process on their own, the sperm donors are allocated no legal rights to the embryos.
It is understandable that this is a divorce legal issue that can become highly emotional. As such, the parties may want to have their respective attorneys seek to negotiate an appropriate settlement of the matter.